(This, as always, is all general ranting and a little bit of simplified law, and not to be taken as any kind of legal advice. Also, I’m not trying to offend anyone wearing the uniform and putting their lives on the line every day to protect rights. I’m just trying to offend those who put on the uniform to violate them.)
Today we’re going to talk about cops. More specifically, a certain kind of cop. We’ll say a… Constitutionally challenged cop. You know the type, the cop that stops you on the street for “looking shifty.” Who pulls you over for going five over the speed limit and then asks to search your car.
I like most cops. They are your friend. They are there to help. But these cops, I want to smack these cops down.
Here’s the bad news. Smacking a cop down just means the Court suppresses the evidence the cop found in his illegal search and seizure, which does nuts all to the cop. Courts don’t actually have the power to punish cops for illegal search and seizures.
Now, people can sue for violation of rights, report the cop enough times to hopefully get his badge yanked, but for most violations, there’s really very little you can do (unless you have enough resources for a lengthy legal battle and sue) if there was nothing for the cop to find that can be suppressed later.
This is why I HATE the exclusionary rule!!!
It does nothing to deter cops from violating your rights (not to mention only helps the actually guilty when it doesn’t provide a remedy for the innocent). They don’t get punished. The case gets thrown out and maybe they are mad about that. The idea is the cops will tread lightly and make sure not to violate rights because then the evidence will get tossed, but this assumes the cops care.
News flash, THEY DON’T!
They think they’re doing their job by getting evidence any way they can, to get the “bad guys” off the street, to get the junkies and drunks locked up so they can’t cause trouble for the next few days, and that it’s the prosecutor’s job to make sure that evidence gets in.
So we’re going to go through a little primer on your rights when interacting with cops (in general ideas handed down by the Supreme Court obviously since these all differ between states on the details). This isn’t going to stop them, in fact if you quote law to them, it just pisses them off. That’s because they don’t actually know any law and don’t like having their noses rubbed in it.
Take a minute to swallow that. The cop you’re talking to, who is saying you violated this so-and-so rule and they can toss your ass in jail, does not know any actual law.
Think that’s terrifying? Wait, it gets scarier. The cop can throw your ass in jail on trumped up charges and it’ll take days to get in front of a court for them to do anything, and then you still have to convince the judge, prosecutor, your own attorney, whoever, that the cop was lying. And you know what?
EVERYBODY argues that! Every defendant is innocent. Everyone was just minding their own business when the cop hassled them. Everyone was following every traffic law to a T when they got pulled over.
The lawyers and court personnel you’re dealing with have heard it all before.
The point, and I swear I have one, is the cops can severely disrupt your life and make you go through hell to get it back on track when they have nothing to go on. And then the prosecutor figures out there’s no evidence, the cop’s story doesn’t quite add up, whatever, and tosses the case. But it takes awhile.
Now we get to the real legal stuff, sorry for the babble and rant, but that’s what happens when I’m getting myself worked up and pissed off.
There are three levels of police interaction with you. 1. The Consensual Encounter. This isn’t a seizure. They ask you to chat. Like the cop coming up asking if you saw anything around 10:00 pm last night. They can conduct an investigation, try to find witnesses, try to figure out the back-story behind a crime, which also means they can hassle you and say later they were just talking and you could leave at any time. That’s what makes this not a seizure, the fact that you’re free to leave just like if you were talking to anyone else on the street. If you don’t want to talk, you don’t have to. At this stage, you can walk away.
Of course if you do, they’ll consider it suspicious and detain you for that.
Which brings us to level 2. The Stop. This is when you’re pulled over, when the cop stops you on the street and you’re not free to leave. The Court has said the line between 1 and 2 is “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.”
Let me ask you, when a cop stops you just to chat, do you ever feel free to leave?
For a stop, the cop needs Reasonable Suspicion of ongoing criminal activity or a past felony to be able to stop you. They have to have a reason to think you have an outstanding warrant, are carrying drugs, were the guy who just robbed the bank a block away. This has to be something they can articulate, can point to and say “that’s why I thought this.” This gets very fuzzy and is usually up to courts to decide. Does two cars being parked on side road at night give the cop enough reasonable suspicion to turn on his lights and come up to them? Does walking around in a bulky coat? What about walking around with a sidearm?
Here, they can only hold you long enough to confirm or dispel their suspicion and can frisk your outer clothing if reasonable suspicion that you’re armed and dangerous, this is for their own protection. Strangely enough this usually ends with them finding drugs and no weapons, if they find anything at all. I have no clue what would happen if they found a perfectly legal sidearm, but I’m guessing it wouldn’t be pretty.
Which brings us to 3. Arrest. This requires, you all know the term, say it with me, probable cause. What is probable cause? Wellllllll, that’s fuzzy. It’s basically when there’s a fair probability of finding evidence of a crime there. If courts and lawyers are debating over this and can’t say for sure what type of circumstances would count as probable cause, the cops sure as hell can’t be expected to know.
Pretty much, when you’re stopped by the police, they don’t have to tell you that you’re free to leave. Usually it’s best just to cooperate since they can make your life difficult. But should you have to? Legally, no. Practically, that’s for you to judge how much hassle you’re willing to put up with to protect your privacy.
Just remember, if they ask you if they may search, you do not have to say yes. If you do say yes, it’s a consensual search and that means unless they forced you to say yes by a beating or something, the evidence they find is getting in. One thing that’s becoming more popular is recording, like having a dash cam or just turning on your phone and using it to record the encounter. At least if something happens, you’d have proof later. That is, if the presence of the camera doesn’t piss the cop off.
I know what you’re thinking. “I’ve got nothing to hide. This only applies to criminals. Innocent people have nothing to fear from the police.”
Just Google police abusing their power, violating constitutional rights, cop caught on tape, anything like that to pull up news stories on cops hassling innocent people or going after people for recording them. That’s just the tip of the iceberg because most of the time if you’re innocent, this stuff never makes the news. The cop stopped you on the street and searched your pockets and found nothing, big whoop. The cop pulled you over for speeding and searched your car and there was nothing there but trash on the front seat and a half eaten bag of Skittles shoved in the car door’s pocket. Yeah, that’s going to make the news. You say no because it’s your right to be free from unreasonable search and seizure. You say yes because it’s just not worth the hassle to fight someone in a more powerful position than you.
Always remember, it is your choice.
(For more info on all this, check out the ACLU’s bustcard. https://www.aclu.org/issues/criminal/bustcardtext.html.)